19-02.1-05. Seizure

19-02.1-05. Seizure

1. Whenever a duly authorized agent of the department finds or has probable cause to

believe that any food, drug, device, or cosmetic is adulterated or so misbranded as to

be dangerous or fraudulent, within the meaning of this chapter, the authorized agent

shall affix to such article a tag or other appropriate marking, giving notice that such

article is, or is suspected of being, adulterated or misbranded and has been detained

or embargoed, and warning all persons not to remove or dispose of such article by

sale or otherwise until permission for removal or disposal is given by such agent or the

court. It is unlawful for any person to remove or dispose of such detained or

embargoed article by sale or otherwise without such permission.

2. When an article detained or embargoed under subsection 1 has been found by such

agent to be adulterated or misbranded, the authorized agent shall petition the judge of

the district court in the county in which the article is detained or embargoed for a libel

for condemnation of such article. When such agent has found that an article so

detained or embargoed is not adulterated or misbranded, the authorized agent shall

remove the tag or other marking.

3. If the court finds that a detained or embargoed article is adulterated or misbranded,

such article must, after entry of the decree, be destroyed at the expense of the

claimant thereof, under the supervision of such agent, and all court costs and fees,

and storage and other proper expenses, must be taxed against the claimant of such

article or the claimant's agent; provided, that when the adulteration or misbranding can

be corrected by proper labeling or processing of the article, the court, after entry of the

decrees and after such costs, fees, and expenses have been paid and a good and

sufficient bond, conditioned that such article must be so labeled or processed, has

been executed, may by order direct that such article be delivered to the claimant

thereof for such labeling or processing under the supervision of an agent of the

department. The expense of such supervision must be paid by the claimant. Such

must be returned to the claimant of the article on the representation to the court by the

department that the article is no longer in violation of this chapter, and that the

expenses of such supervision have been paid.

4. Whenever an authorized agent of the department finds in any room, building, vehicle

of transportation or other structure, any meat, seafood, poultry, vegetable, fruit, or

other perishable articles which are unsound, or contain any filthy, decomposed, or

putrid substance, or that may be poisonous or deleterious to health or otherwise

unsafe, the same being hereby declared to be a nuisance, the department's authorized

agent shall forthwith condemn or destroy the same, or in any other manner render the

same unsalable as human food.

5. Any person, firm, corporation, or limited liability company having an interest in the

alleged article, equipment, or other thing proceeded against, or any person, firm,

corporation, or limited liability company against whom a civil or criminal liability would

exist if said merchandise is in violation of section 19-02.1-02 may, within twenty days

following the seizure, appear and file answer to the complaint. The answer must allege

the interest or liability of the party filing it. In all other respects, the issue must be made

up as in other civil actions.

6. Any article, equipment, conveyance, or other thing condemned under this section

must, after entry of the decree, be disposed of by destruction or sale as the court may,

in accordance with the provisions of this section, direct and the proceeds thereof, if

sold, less the legal costs and charges, must be paid to the treasurer of the state; but

such article, equipment, or other thing may not be sold under such decree contrary to

provisions of this chapter.

nder this section

must, after entry of the decree, be disposed of by destruction or sale as the court may,

in accordance with the provisions of this section, direct and the proceeds thereof, if

sold, less the legal costs and charges, must be paid to the treasurer of the state; but

such article, equipment, or other thing may not be sold under such decree contrary to

provisions of this chapter.

7. Whenever in any proceedings under this section the condemnation of any equipment

or conveyance or other thing, other than a drug, is decreed, the court shall allow the

claim of any claimant, to the extent of such claimant's interest, for remission or

mitigation of such forfeiture if such claimant proves to the satisfaction of the court all of

the following:

a. The claimant has not committed or caused to be committed any prohibited act

referred to in chapter 19-03.1 and has no interest in any drug or controlled

substance referred to therein.

b. The claimant has an interest in such equipment, or other thing as owner or lienor

or otherwise, acquired by the claimant in good faith.

c. The claimant at no time had any knowledge or reason to believe that such

equipment, conveyance, or other thing was being or would be used in, or to

facilitate, the violation of the laws of this state relating to depressant, stimulant, or

hallucinogenic drugs or counterfeit drugs.

8. When a decree of condemnation is entered against the article, equipment,

conveyance, or other thing, court costs and fees and storage and other proper

expenses must be awarded against the person, if any, intervening as claimant of the

article.